Spitzer's Plamegate

A man I like a lot -- Democratic New York Gov. Eliot Spitzer -- is in the middle of his own version of Plamegate, complete with accusations that he sought to discredit a political rival by misusing government resources, and Spitzer's vow to claim a state version of executive privilege in the burgeoning confrontation with Republican state senators.

A scathing report issued on Monday by Attorney General Andrew M. Cuomo concluded that the governor’s staff had broken no laws but had misused the State Police to gather information about Joseph L. Bruno, the Senate majority leader, in an effort to plant a negative story about him.

Basically the governor's staff had Bruno's state police escorts document Bruno's whereabouts when they accompanied him on "official" trips, apparently hoping to show that he was engaging in personal travel or junkets on the taxpayer's dime. The report specifically cleared Bruno (right) of that charge, saying each of his trips had at least some legitimate legislative business attached to it.

Cuomo, by the way, is another Democrat -- the son of former New York Gov. Mario "Hamlet" Cuomo. And the report was endorsed by Spitzer's Inspector General, Kristine Hamann.

Spitzer says he was unaware of the activity, and his response to it was a lesson in the proper way to handle such things:

The governor said he accepted the findings, saying his administration had “grossly mishandled” the situation.

“As governor, I am accountable for what goes on in the executive branch and I accept responsibility for the actions of my office,” he said at a press conference this morning, with many of his staff members looking on somber and staggered.

“I apologized to Senator Bruno and I did so personally this morning,” he added. “In addition, I apologized to the men and women of the State Police, and to acting Superintendent Preston Felton personally for allowing this esteemed institution to be drawn into this matter.”

“They should never have been put into this situation. Finally, I apologize to the people of the State of New York for having allowed this matter to have become a distraction from the vital work at hand.”

Darren Dopp, Mr. Spitzer’s communications director and one of his closest aides, was put on indefinite unpaid leave of at least 30 days. William Howard, the Assistant Secretary for Homeland Security, will be reassigned to a post outside the governor’s office.

All well and good, but two of Spitzer's aides refused to cooperate with the Cuomo investigation, and Republicans in the state Senate -- led by an incensed Bruno -- are pushing an investigation to find out if Spitzer was, indeed, unaware of what his staff was up to. They're talking about subpoenaing everyone, including Spitzer.

Spitzer, for his part, has vowed to resist any effort to compel his aides to testify.

Much as I like Spitzer, he's in the wrong here. Legally he's got the same legitimate point as Bush does on executive privilege, with similar strengths and weaknesses (although New York law has generally been hostile to executive privilege claims). But as in the Plame and prosecutor inquiries a legitimate question has been raised, and it deserves to be answered.

Spitzer can point to one difference: unlike with Plame and the prosecutors, Cuomo made a concrete determination that no laws were broken. That's not enough to get off the hook, however. As in the prosecutor case this is less an investigation of illegality than an investigation of impropriety, which falls into the legislative branch's oversight capacity. Spitzer should order his aides to talk. If doing so violates their Fifth Amendment rights, they should invoke the Fifth and let the Senate grant them immunity in exchange for their testimony.

Republicans, for their part, are overreaching, moving to subpoenas as a first resort and casting an overly broad net. Subpoenas should be narrowly tailored and a last resort, or else they risk giving Spitzer a legitimate executive privilege defense.

I'm disappointed in Spitzer, and hope he truly was uninvolved. I also hope this doesn't derail his policy initiatives. But regardless of the political cost, Spitzer needs to come clean. Doing the right thing aside, if he doesn't put this to rest quickly it will turn into a drawn-out battle with the legislature, which surely will derail his initiatives just as the Gonzales scandals have harmed Bush and the Justice Department.

Cuomo, Bruno, Spitzer, New York, politics, midtopia

Nonpartisan redistricting

Last week, Simon over at Stubborn Facts linked to a group that has developed a mathematical algorithm for drawing Congressional districts -- one that would make gerrymandering a thing of the past.

The so-called splitline algorithm follows a few simple rules to divide up a state using the fewest number of straight lines as possible.

For example, here's how Tennessee looks now:


And here's how it would look if the algorithm were used:


Obviously, the computer-generated map seems far more in keeping with the spirit of geographical representation.

But just as obviously, the upside of total nonpartisanship is gained at the expense of ignoring all existing natural and political boundaries. The district lines would arbitrarily split cities, neighborhoods, even streets. It would be technically simple to determine what district you were in using a GPS device, but it would be hard to do so simply looking at a map.

That said, gerrymandering often produces the same result, and for far less defensible reasons.

Such a problem seems solvable, however. The algorithm could be linked to a database of geographical and political boundaries, and modified to draw the simplest districts while giving maximum deference to those boundaries. The key point -- automated, nonpartisan district drawing -- would be retained. All that would change is that the district borders would get a little more complicated in order to be easier to understand.

Like Simon says, it's a start, not a finish. But it's a promising one.

BTW, here's how Minnesota might look.



redistricting, politics, midtopia

House ups the ante on Gonzales

Congress is rushing headlong into its confrontation with the executive branch.

The House Judiciary Committee has voted to issue contempt citations for Joshua Bolton and Harriet Miers. If the full House approves the citations -- and it could be weeks before that occurs, thanks to Congress' upcoming summer break -- they will be referred to a U.S. attorney for possible prosecution. That will trigger a court battle when the president cites executive privilege as reason for the attorney to ignore the citations.

Although the committee vote was along party lines, that doesn't mean Republicans weren't up for a fight with Bush. James Sensenbrenner, the former chairman of the committee, said Congress instead should have filed a suit challenging Bush's executive privilege claim.

The text (pdf) of the committee memo (all 70 pages of it) outlines not only the reasons for the citations but also the Democratic case for the investigation into the prosecutor firings.

According to the WaPo summary, it's mostly a compilation of everything that has come up in this whole flap, as well as a lot of fingerpointing at Rove and a rebuttal of Bush's most recent assertion that federal prosecutors cannot undermine an executive privilege claim.

Here are a few key excerpts from the report:

Although the Supreme Court has held that even a sitting president is not immune from subpoena or from participation in civil litigation, the White House and Ms. Miers nevertheless assert that a former White House Counsel, who currently occupies no position in the federal government, is absolutely immune from compulsion even to appear before [Congress]. The White House relies on the presidential communications executive privilege, even though the White House has specifically stated that the President did not receive advice on or participate in the ... firings. [They] have also refused even to provide a log identifying the withheld documents and providing the basic facts necessary to support the claim of privilege, even though such logs are routinely required by the courts....

Further on, the memo lists what it deems improper interference in the activities of six of the fired prosecutors. And then it lists what it considers false or misleading statements by senior Justice officials, including Alberto Gonzales, Paul McNulty, Kyle Sampson, Mike Elston and others. Finally it mentions the improper political test applied to new career prosecutors by Monica Goodling.

That evidence, coupled with the failure of anyone in the administration to take responsibility for developing the list of attorneys to be fired, is Congress' justification for further investigation. Bush's response: "executive privilege." To which Congress responds:

Even if executive privilege were properly asserted, the privilege is not absolute, but rather is subject to a "balancing of interests" based on the needs of the President and the Congress. In the present case, where there is clear evidence of wrongdoing leading to the White House, where the information is important for considering possible legislative changes, where the Committee has sought to obtain the information elsewhere and has sought to obtain a reasonable accommodation, and where there is no overriding issue of national security, it is clear the Committee's oversight and legislative interests should prevail.

It's a powerfully stated case, although it overreaches a bit (such as the claim of "clear evidence of wrongdoing" and a too-forceful assertion of Karl Rove's role in the firings).

The rest of the memo goes into great detail about who knew and did what, and when, along with supporting arguments and lots and lots of footnoted citations. The key questions:

If no one at the Justice Department identified [the attorneys] for firing, who did? If the reasons given to Congress and the public to support the firings are false, what were the real reasons? If the White House role was innocent and routine, why was a concerted effort made to hide it?

Put that way, doesn't this sound like it has Dick "obsessive secrecy" Cheney's fingerprints all over it?

Okay, let's no go there.

Much of the memo stresses the argument that Congress has exhausted other sources of information and now needs White House documents in order to exercise its oversight function or properly consider potential legislation. This cames into stark play on page 32, when it addresses the president's strongest defense: attorneys are political appointees that can be fired for any reason or no reason at all.

While U.S. Attorneys serve at the pleasure of the President, it is widely accepted that they should not be dismissed for improper reasons, such as to influence prosecutions or to retaliate for the exercise of prosecutorial judgment in a manner that was not beneficial to a particular political party. Based on the ongoing investigation, Congress may wish to consider some limitation on removal of U.S. Attorneys ... in the middle of a presidential term.

Note the angle of attack. Yes, U.S. Attorneys are political appointees. But they're supposed to be relatively independent, and the only reason they're political appointees is because Congress allows it. Further, Congress sets the rules for such appointments. If the hiring or firing process is being abused, Congress needs to know so it can change the rules if necessary. Their appointee status and current law may shield the administration from criminal charges, but it does not protect the administration from oversight.

That strikes me as a pretty powerful argument.

I invite our resident Bush supporter to rebut the case, with one request: focus on materially significant matters, not minor quibbles such as those I've already outlined, like the as-yet-unproven assertion that the whole thing originated with Rove.

Gonzales, politics, midtopia

The science of climate change

The latest issue of Scientific American has a pretty informative article on the current state of climate science: why we know the earth is warming, and why we know human activity is partly to blame.

The authors are William Collins of UC-Berkeley; Robert Colman, an Australian; James Haywood of the UK's Met Office; Martin Manning of NOAA; and Philip Mote, the climatologist for the state of Washington.

Unfortunately it'll cost you $5 to read the article online. I'll summarize the key points here, but if you want to read the whole article you'll need to buy a copy or go to the library.

The main points:

GREENHOUSE GASES
1. Atmospheric concentrations of carbon dioxide, methane and nitrous oxide have been stable for 10,000 years -- until they began growing rapidly about the time the Western world industrialized.

WARMING
1. 11 of the past 12 years are the warmest since reliable records began around 1850. That's a pretty short time frame, geologically speaking, but the chances of that happening by chance are very small.

2. Measurements from ice cores and tree rings provide a longer time line, showing that the current climate is warmer than it has been for at least 1,300 years.

3. While natural variability occurs, temperature extremes have changed in accordance with the warming trends. Frost days and cold days have become less common, while heat waves and hot days have become more common.

4. The oceans are warming as well, more so at the surface than in the depths, a sign that the warming source is at the surface.

5. Overall, the planet's average temperature has risen .75 degrees Centigrade (about 1.5 degrees Fahrenheit) in the last 100 years -- and the pace is accelerating.

RISING SEA LEVELS
1. The oceans have absorbed more than 80 percent of the added heat. This has warmed the water, which expands, causing sea levels to rise. Melting glaciers and ice sheets add to the effect.

2. The oceans have been measured rising an average of 3.1 millimeters a year. Over 50 years, that would mean a total increase of 155mm, or about 6 inches. The process is expected to accelerate, however, for a total rise in the 21st Century of maybe 40 centimeters (400mm, or about 16 inches) and possibly as much as 60 centimeters (about two feet).

3. With rising sea levels comes inundation of low-lying coastal areas, a higher water table, increased flooding, erosion, salination of coastal waterways and wetlands, and greater danger from storms. An EPA study of the effects of various levels of sea rise suggests (while admitting it is an underestimate) that even a 6-inch increase would cost the United States alone something like $100 billion if we wanted to protect developed coastal areas and prevent inland flooding (the cost is spread over 100 years, so the annual cost isn't too bad. But that assumes coastal development all but ceases, and that sea levels stop rising. The costs rise fairly rapidly with additional increases in sea levels).

HUMAN CAUSES
We know humans are responsible for this increase for several reasons.

1. Some greenhouse gases, like halocarbons, have no natural sources.

2. Geographic differences in concentration comport well with human causation, with heavier concentrations over the more heavily populated and industrialized northern hemisphere.

3. Analysis of isotopes in atmospheric gas can identify the origin of the gas. It turns out most of it comes from burning fossil fuels.

4. There is more warming over land than over sea, and in the ocean the greatest warming is occurring at the surface -- both indicators of a human factor.

5. The troposphere (the lower atmosphere) is warming while the stratosphere is cooling -- exactly what you would expect if the cause was increased emissions of greenhouse gases and depletion of stratospheric ozone. If warming was primarily caused by solar activity, both layers of the atmosphere would warm up.

ACCURACY OF MEASUREMENTS
1. For the long-lived greenhouse gases, we know their heat-trapping effects fairly well, because we have precise measurements of their concentration and distribution in the atmosphere, and we know how they affect the planet's energy balance.

2. Five years have passed since the last major report, and in those five years temperature increases have been consistent with projections of greenhouse-driven warming.

3. The climate models used to make predictions and measure the effects of various warming and cooling factors are getting better. In addition, results are drawn from an ensemble of 18 modeling groups, so the weakness of any single model can be identified and its effect on conclusions reduced.

The article ends with a discussion of what isn't known, the limitations of current research and thus the lack of granularity in some areas. But overall I think it does a good job of explaining why leading scientists think humans are a significant factor in global warming.

global warming, environment, politics, midtopia

Gonzales testifies

I didn't get to watch even a part of Gonzales' testimony on Capitol Hill today, but I gather I didn't miss much. He still has no idea who decided to fire the U.S. attorneys in the agency he supposedly runs, and he still has problems making claims that turn out to be misleading.

For instance, he claimed that top Congressional leaders were fully briefed on the warrantless eavesdropping program and urged the administration to continue it. Five lawmakers who attended the briefing disputed his claim. One of them, Sen. Jay Rockefeller, said: "He once again is making something up to protect himself." Another, former Sen. Tom Daschle, said "this appears to be another attempt to rewrite history."

Senators, who gave Gonzales some deference during his last appearance, simply were not in a forgiving mood, with many of them telling him pointblank that he should resign.

"I do not find your testimony credible, candidly," said Sen. Arlen Specter (R-Pa.), who became visibly angry at several points during his exchanges with Gonzales. "The committee's going to review your testimony very carefully to see if your credibility has been breached to the point of being actionable."

Chairman Patrick J. Leahy (D-Vt.) told Gonzales bluntly: "I don't trust you."

Specter also suggested that Gonzales might need to appoint a special prosecutor to get to the bottom of the prosecutor firings. The fact that a Republican would suggest such a thing is a sign of how deep the mistrust of Gonzales runs.

And in this exchange, Gonzales appears to admit he misled Congress.

"It's hard to see anything but a pattern of intentionally misleading Congress again and again," Sen. Russ Feingold, D-Wis., told Gonzales during the often-bitter Senate Judiciary Committee hearing. "Shouldn't the attorney general of the United States meet a higher standard?"

"Obviously, there have been instances where I have not met that standard, and I've tried to correct that," Gonzales answered.

Senators took turns raking him over the coals. Specter, again, had the most devastating things to say about Gonzales' misleading 2006 testimony about the eavesdropping program.

Specter said that it was obvious that, as Gonzales initially confirmed last month, Comey was testifying about the Terrorist Surveillance Program -- meaning that Gonzales was not only lying to the Senate in his 2006 testimony, but lying today about "other intelligence activities" to cover up the lie. His advice to Gonzales was "to review your testimony carefully" and that the committee should see "if your credibility has been breached to the point of being actionable."

Ouch.

If you follow the link immediately above, you'll see that Gonzales maintains he told the truth back then, about there not being "significant" disagreement about the eavesdropping program "as confirmed" by the president. But that's only because the disagreement preceded modifications that led to the "confirmed" version of the program.

In that May 2007 post, I concluded the testimony wasn't particularly relevant, because he didn't actually lie and it's not that important whether there was disagreement or not. Further, he was already in so much hot water that it was hard for it to get any hotter. Turns out I might have been wrong: Congress doesn't like to be misled for any reason, artfully worded or not. Many senators simply believe he lied, or at least deliberately misled, and are focusing much of their anger on that.

At the end of the day, the senators made it very plain that they have lost all confidence in Gonzales. The question now is whether that makes any difference. Answer: probably not. But it means the Justice Department will limp along for the rest of Bush's term, with a discredited Attorney General who has lost nearly all of his senior staff to resignations and who is having difficulty finding replacements.

Most members of Gonzales's senior staff have resigned or are on the way out. Several outside candidates turned down chances to be considered for the job of his deputy, and more than a half-dozen other top positions remain filled by temporary appointees. Some of the department's key legislative priorities — including intelligence law revisions and anti-crime proposals — have also bogged down because of the fight with Democrats over the prosecutor firings.

And it's only going to get worse.

Gonzales, politics, midtopia

Gonzales v. Congress, Round Four or so

Tomorrow, Attorney General Alberto Gonzales will appear once again before Congress. The Carpetbagger Report has an outstanding post on the subject. A taste:

Gonzales has become the most reviled man in the administration, after having been caught lying and losing control of the Justice Department. The political norms of Washington say Gonzales has to go. Bush, meanwhile, is The Decider — and The Decider doesn’t much care about rules.

A couple of months ago, the New York Daily News quoted a “senior Republican” saying, “[Bush] wants to fight, but that will change because it has to.”

But it doesn’t “have to.” It only “has to” if the president wants to be a responsible leader in a political system in which conduct has meaning.

Slate recently concluded, “It is just about universally agreed upon that Gonzales will go down in history as the attorney general who helped the president: 1) torture, 2) wreak havoc on civil liberties, 3) fire U.S. attorneys who didn’t prosecute along preferred political lines, 4) demoralize the Department of Justice, 5) worsen Bush’s already dismal relationship with Congress, and 6) relentlessly hector a man in the intensive care unit.”

News stories are keying off Gonzales' 26 pages of prepared testimony, of which five paragraphs are devoted to the attorney firings. Gonzales' main point: he's staying to help fix the Department's broken image.

Of course, the reason the department's image is broken is largely Gonzales himself. The single biggest thing he could do to repair that image is resign. Which makes his stated rationale just a little suspect. Perhaps Gonzales thinks he can repair the damage, but that's just a bit outside the scope of reality (which, I suppose, would be par for the course.) People had plenty of reasons to dislike Gonzales, starting with his justification of torture. His mismanagement of Justice was really just icing on the cake.

It's tempting to say that if Gonzales really cared about the department, he'd resign. I won't go that far; I'll give him the benefit of the doubt and assume that he cares, but harbors major delusions about his ability to fix things given that he himself is the problem.

Gonzales, politics, midtopia

Anyone but the godless

My presidential ambitions took a hit this weekend. The New York Times ran a story about religion and morality in politics, with Mitt Romney as the hook. But the chart that ran with it -- reproduced above -- is worth a long, close look (click on it to get a larger version).

Not believing in God -- which, defined that way, applies to agnostics like me -- renders a candidate suspicious in the eyes of two-thirds of voters. It's worse than being old, uneducated, gay, Muslim, female, divorced, a drug user or a philanderer.

It's a positive for just 3 percent. Which makes a certain amount of sense: lack of belief is a negative trait, after all -- not negative in the sense of "bad", but negative in the sense that it's defined by the lack of something. It's hard to get excited about something a candidate isn't.

So I'm actually pleasantly surprised that it makes no difference for a third of voters.

It turns out that while the specific nature of one's belief has an effect -- more people are willing to vote for a Mormon than a Muslim, all things being equal -- the most important thing is simply to have a belief.

It's not that simple, of course. For one thing, a candidate usually has more than one trait listed on the chart, and any real candidate is an actual person, far more than the sum of his or her labels. So the chart is more useful as a description of general attitudes than as an attempt to apply it to specific races.

Further, the story goes on to note that the real concern with regard to candidates with minority beliefs is tolerance: John Kennedy got past anti-Catholic bias by promising he would resign rather than let his religion interfere with the national interest. It suggests Romney could pursue the same tact.

I don't know about the resigning bit, but "tolerance" (or more carefully chosen words like "admiration" or "respect") is how I'd frame it if I were running. Lack of belief on my part does not imply hostility to religion; far from it. It simply reflects my own inability to claim belief in something for which I see no compelling proof. In some ways I envy believers, for clearly they've found something that I have not. And who am I to say who's right?

On a political level, religion has a valid and vital role in society, and that role should be tapped wherever and whenever it makes sense to do so. Religion should suffer neither fear nor favor from government.

One concern about a "godless" candidate is that they have no personal ethics, no solid moral foundation. It's tempting to label such concerns ignorant, but there's little political gain in insulting voters. Luckily, such questions are easily addressed by discussing my personal ethics and the principles they spring from. Alternatively I could simply point to various politically useful biographical items, like my military service, faithfulness in marriage or the fact that I was an Eagle Scout. That might not assuage concerns about unbelievers in general, but it would help make one agnostic candidate more palatable.

Meanwhile, the chart reveals some interesting relationships:

1. Being a smoker is worse than being a woman, which is worse than being divorced;

2. Being a former minister is even worse than that.

3. Having an extramarital affair is (slightly) better than admitting past drug use. But both are better than never having gone to college.

4. Being a Muslim is almost exactly as bad as being gay.

5. "Drain the swamp" rhetoric notwithstanding, 35 percent of voters view being a "longtime Washington politician" as a positive.

6. Apparently the recipe for a successful politician is a Christian veteran who ran a business after attending a prestigious university.

Lots more in the chart. What would you do? Which of the characteristics listed are positives or negatives for you, and why?

religion, politics, midtopia

Not your typical whistleblower

The New York Times today has a nice profile of Lt. Col Stephen Abraham, the man whose testimony has cast a shadow on the legitimacy of the Guantanamo terror tribunals and seems to have led the United States Supreme Court to reverse itself and hear arguments about the legal rights of detainees.

His political and professional pedigree make it difficult to accuse him of acting out of base motivations:

A lawyer in civilian life, he had been decorated for counterespionage and counterterrorism work during 22 years as a reserve Army intelligence officer in which he rose to the rank of lieutenant colonel.... A political conservative who says he cried when Richard M. Nixon resigned the presidency, he says he has remained a reservist throughout his adult life to repay the country for the opportunities it offered his family. His father is a Holocaust survivor who emigrated after the Second World War.

He served at the tribunal in 2004-2005, and officially registered many misgivings at the time. But he didn't decide to step forward publicly until he was contacted in 2006 by a law firm representing detainees, who read him an affidavit describing the tribunal process as orderly and carefully considered. Knowing that wasn't true, he agreed to testify. Clearly, these were not the actions of a man seeking publicity.

When the story first came out, I mentioned that one problem with Abraham's account was that it was anecdotal: we had no way to know if his experience was typical, or what the reasons behind it were.

But it turns out he had access to a lot of information, not just his isolated experience on a single tribunal panel.

As an intelligence officer responsible for running the central computer depository of evidence for the hearings, he said, he saw many of the documents in hundreds of the 558 cases. He also worked as a liaison with intelligence agencies....

What sort of problems did he find?

It was obvious, Colonel Abraham said, that officials were under intense pressure to show quick results. Quickly, he said, he grew concerned about the quality of the reports being used as evidence. The unclassified evidence, he said, lacked the kind of solid corroboration he had relied on throughout his intelligence career. “The classified information,” he added, “was stripped down, watered down, removed of context, incomplete and missing essential information.”

To demonstrate the sometimes laughable nature of the evidence, consider this public example:

In a hearing on Oct. 26, 2004, a transcript shows, one detainee was told that another had identified him as having attended a terrorism training camp. The detainee asked that his accuser be brought to testify. “We don’t know his name,” the senior officer on the hearing panel said.

In another case, an Afghani was being held because he had associated with jihadis. He admitted to doing so -- in the 1980s, during the Soviet occupation of Afghanistan, when "jihadi" had a whole different meaning. He asked the tribunal if that was the basis of the accusations against him. "We don't know what that time frame was, either," the tribunal's senior officer replied.

Pentagon officials say Abraham simply wasn't in a position to know the full extent of the tribunal process, despite his access to the central database. But Abraham makes his point on more direct grounds:

Colonel Abraham said that in meetings with top officials of the office, it was clear that [innocent] findings were discouraged. “Anything that resulted in a ‘not enemy combatant’ would just send ripples through the entire process,” he said. “The interpretation is, ‘You got the wrong result. Do it again.’ ”

As noted in my earlier post, when his panel decided unanimously that a detainee was not an enemy combatant, they were told to reconsider. They declined.

As it turns out, the story didn't end there -- a move that again calls into serious question the impartiality of the hearings.

Two months later, apparently after Pentagon officials rejected the first decision, the detainee’s case was heard by a second panel. The conclusion, again by a vote of 3 to 0, was quite different: “The detainee is properly classified as an enemy combatant and is a member of or associated with Al Qaeda.”

One wonders how many do-overs the Pentagon was allowed in order to get a "correct" verdict.

Damning as all of this is, caveats remain. This is largely a story that relies on one source -- Abraham himself. He seems a credible witness, and what he says is both compelling and specific. But until his account is subjected to cross-examination or attempted refutation, it should not be taken as gospel.

But it's a reason to look forward to his testimony before Congress on Thursday, and the Supreme Court hearing this fall.

Guantanamo, terrorism, Abraham, politics, midtopia

Stop making me defend Bush

The Gun-Toting Liberal has a post up today expressing outrage over a recent executive order that freezes the assets of, and prohibits aid or donations to, groups or individuals seeking to undermine the government of Iraq.

GTL's up in arms because, on his reading, people could find themselves in trouble for even tenuous links to organizations on Bush's enemies list.

But this isn't as big a deal as GTL makes it sound. It simply extends existing practice regarding anti-U.S. terrorist activities to cover activities aimed at the government of Iraq. And it doesn't criminalize donors -- it simply prohibits them from donating to such groups or individuals.

If you read the referenced laws, you'll find that he's merely exercising authority granted him by Congress, specifically section (b)(2)(A).

One can disagree with the underlying assertions -- whether we are properly in the midst of a "national emergency", whether the identified groups are actually terrorist supporters, how donations of humanitarian aid "seriously impair" Bush's ability to deal with terror.

But his legal authority is clear. He declared a national emergency regarding Iraqi reconstruction efforts back in May 2003, and later amended it in various fashions.

If you've got a problem with it (and I don't, unless and until we find problems with the execution -- for instance, that the list of groups and persons is overbroad) contact Congress. They're the ones who gave him the authority.

Iraq, Bush, politics, midtopia

Rethinking "Collision Course"

More opinions are starting to roll in over President Bush's assertion that Congress cannot pursue contempt charges in cases where the president invokes executive privilege. Plus I've had 24 hours to think it over. And it appears I overreacted a little bit yesterday.

It's deeply offensive on the face of it for the administration to essentially say "we control the prosecutors, and we won't use them on ourselves." It's also deeply offensive to claim that the president and the president alone determines whether executive privilege applies, and that the judiciary had no authority to rule on such a decision. That is what Bush seemed to be saying.

But it appears that the administration's opinion is strictly limited to contempt proceedings, and to a narrower part of such proceedings than I thought. And in that context, all they're saying is that the Justice Department cannot be forced to undermine a valid presidential invocation of privilege. As Walter Dellinger, a Justice Department official under President Clinton who made a similar argument in 1995, puts it:

"Congress can determine what's unlawful but not determine who should be prosecuted," said Dellinger, who is now a Duke University law professor. "It's an important part of the separation of powers. . . . The real issue in this case is whether the claims of executive privilege are valid," a matter that he said would have to be adjudicated on its merits in the courts.

Which in the end echoes my position on the matter: Bush should claim privilege, Congress should claim oversight, and let a court decide who wins.

One reason I thought the president's claim was too broad was framed by a question: What happens if the court rules against the president and he still refuses to turn over the documents? If he cannot be held in contempt, what penalty is there with which to enforce the ruling?

We've got some answers there, too. Besides the political remedies I mentioned yesterday, the key concept is that the Justice Department cannot be used to undermine a valid claim of executive privilege. But if the claim is rejected, it becomes invalid. And if the president still refuses to cooperate, presumably the Justice Department could be used to compel his cooperation.

So let's move past this distraction and get on to the real meat of the matter: a court ruling on the competing constitutional claims.

executive privilege, Bush, politics, midtopia

D.C. madam update

Add to the list of prominent people linked to Deborah Palfrey's call-girl ring: Democratic activist and lobbyist Bill Broydrick. He called Palfrey's number three times in 2004.

Who the heck is Broydrick?

A former state lawmaker and longtime Democratic activist, Broydrick is considered one of the most influential lobbyists in Wisconsin and Washington.

Broydrick and Associates, the firm owned by Broydrick and his wife, Cynthia, consistently ranks among the highest-paid lobbying firms in the state and has offices in Madison, Washington and Tallahassee, Fla.

Broydrick declined to comment on the finding. One interesting twist: His lobbying firm is a joint venture with his wife, Cynthia. If there's any personal fallout, it could turn professional as well.

No evidence of hypocrisy just yet, though.

Wisconsin, Palfrey, Broydrick, politics, midtopia

Collision course

Can you say "landmark ruling ahead"?

The White House has just thrown Miracle-Gro on to the growing Constitutional confrontation between Bush and Congress over the latter's investigation into the firing of U.S. prosecutors.

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.

Go ahead and file contempt charges, the administration is saying. Under federal law, those charges can only be pursued by a U.S. attorney. And because the administration won't let the Justice Department approve such a pursuit, the charges will die from neglect.

The power-grab here is pretty astonishing. The president isn't just asserting that his invocation of executive privilege trumps Congress' power of oversight, a claim that is at least plausible; he's asserting that such invocation of executive privilege in the face of a contempt citation can never be challenged in court, because the Justice Department will simply refuse to bring the charges.

Now, this claim is currently limited to the narrow question of Congress filing contempt charges. But within that narrow scope it effectively puts the President above the law. And since contempt charges are Congress' main weapon against executive privilege claims it removes most limits on such claims.

True, Congress could still file a civil lawsuit to force a judicial decision on a specific claim. But such a decision would lack teeth. Say Congress wins its civil lawsuit, and the president still refuses to turn over documents. What recourse does Congress have? Nothing short of impeachment, with contempt charges off the table.

But beyond that, why can't the same logic be applied to any violation of federal laws that rely on the Justice Department for enforcement? Commit the crime, then forbid Justice to investigate; it's a get-out-of-jail-free card, with (once again) impeachment the only remedy.

LAPDOG WATCHDOG
It's also a sign of the lapdog status to which the Justice Department has fallen. Though the Bush stance rests heavily on a similar argument (pdf) advanced as part of a Reagan administration lawsuit, Reagan's White House never actually tried to carry it out. Nor was it resolved in the courts, because the Reagan administration official in question eventually agreed to give Congress the documents it wanted (pdf) -- derailing the lawsuit by caving.

Rep. Henry Waxman gets the best quote on that aspect: "I suppose the next step would be just disbanding the Justice Department." But the best summation comes from Mark Rozell, a professor described as an expert on executive privilege: "It's allowing the executive to define the scope and limits of its own powers."

LEGITIMATE ISSUE
Hidden within here is an interesting, legitimate question. When Congress suspects wrongdoing in the executive branch, how can it be handled? Should Congress have the power to compel an investigation and prosecution of a "co-equal" branch? Probably not. Should the administration have the power to decide whether to investigate or prosecute itself? Probably not. So what's left?

The ideal situation would involve an independent prosecutorial service weighing each case on its merits, not on politics or who signs their paychecks. But it's easy to see why that might not be practical. And anyway the phrase "independent prosecutor" still sends shivers up the spines of people on both sides of the aisle.

That's why the best solution is probably current practice: Let Congress bring contempt charges; let the president invoke executive privilege; and let the judiciary sort out the winner, establishing legal tests for doing so in a consistent manner.

PRACTICAL EFFECTS
The audacity of the claim aside, what would happen if the president's interpretation carried the day? Not quite as much as you might think. He'd be immune from contempt charges, certainly. But that would not shield him from Congressional wrath.

For one thing, Congress could turn to its "inherent contempt" power, last used in 1934, which entails having the Sergeant-at-Arms arrest the suspect and holding a trial on the Senate floor. Sen. Patrick Leahy described the process and history of the procedure back in May 2000, during discussions about whether to subpoena Clinton's attorney general. Among other things, Dick Cheney would preside over the proceedings (unless he was forced to recuse himself for conflict of interest).

There are problems with such a course, however. Besides the archaic spectacle and huge waste of time, Bush could just pardon anyone so convicted -- although there's some debate over whether his pardon power extends to contempt of Congress.

More prosaically, Congress could simply hold up funding bills, nominee hearings and any other business until the president coughs up the information it wants, as well as tying the administration up with endless subpoenas, investigative hearings and other forms of harassment. Not to mention riders specifically forbidding any use of federal funds to fight a contempt citation.

So perhaps the administration should think twice about pushing their case much further. As I argued above, Bush should invoke executive privilege and then let the courts decide if that outweighs Congressional oversight in this particular case.

DELAYING TACTIC
Of course, the administration may be less interested in proving its case than in simply delaying it until Bush leaves office. Two executive privilege assertions, both of which will probably be appealed to the Supreme Court, may well do the trick -- though Congress could petition the Supreme Court to accept the cases directly, bypassing lower courts.

For now, look for two separate constitutional questions to head to the courts. The first will be an opinion on the viability of the latest administration claim. The second (assuming the administration loses the first round) will be the underlying question of whether privilege trumps oversight in this particular case.

executive privilege, Bush, politics, midtopia

Do not adjust your monitor

Came across this fascinating optical illusion while reading up on misleading statistical charts. It's not an animated graphic; it's just your eye playing tricks on you.

My entire family is sick, so this is it for me today. More tomorrow. Consider this an open thread if you've got something you want to share.

optical illusions, politics, midtopia

Bernanke parody video

I'm enough of a politics and business junkie to find this pretty funny. Even if you don't like the economics jokes, it's a pretty slick video -- and the singer ain't bad, either.

The back story: Glenn Hubbard, dean of the Columbia Business School, was a candidate to replace Alan Greenspan as Federal Reserve chairman. The job ended up going to Ben Bernanke. The video purports to be Hubbard expressing his views on the subject, to the tune of the Police song "Every Breath You Take."

Hubbard, Bernanke, politics, midtopia

One-liners

The story: Larry Flynt claims he has 30 solid leads on names from the D.C. Madam's list, including at least one more senator.
The comment: You know the world is a weird place when Larry Flynt is the conscience of a nation.

The story: In Washington, D.C., vandals trash a man's Hummer, leaving an illiterate protest note: "FOR THE ENVIRON."
The comment: Grow up and learn to spell. Since when is property damage a liberal value?

The story: Rep. Don Young of Alaska -- he of the "bridge to nowhere" -- loudly defends an earmark as "my money" on the House floor. He suggests that one reason Republicans lost control of the House in November is because conservative members had challenged too much such spending.
The comment: It isn't your money, Don; it's the taxpayers' money. Time to retire.

Don Young, Hummer, Flynt, politics, midtopia

Coleman 1, Galloway 0

Minnesota Sen. Norm Coleman is enjoying some vindication for his May 2005 confrontation with British MP George Galloway. Coleman, then the chair of the Senate's investigative subcommittee, had accused Galloway of profiting from shady oil-for-food deals with Saddam Hussein.

Galloway appeared before Coleman's committee (pdf) and angrily denied the allegations -- while refusing to address specifics -- and later claimed victory in op-ed pieces.

Fast forward two years. The British House of Commons completed its own investigation into the matter and reached a conclusion quite similar to Coleman's: that Galloway had, in fact, profited from oil-for-food deals. The committee involved has recommended that Galloway be suspended from Parliament for 18 days -- which seems like a slap on the wrist, but is apparently one of the most severe punishments that can be visited on an MP.

Galloway dismissed the report as the work of "a pro-sanctions and pro-war committee of a pro-sanctions and pro-war Parliament passing judgment on the work of their opponents."

Coleman did a bit of crowing, as he had every right to:

The Parliament report, Coleman said, "confirms what we've known all along: Galloway was neck-deep in the oil-for-food deals, he kowtowed to Saddam Hussein, and his bombastic denials were nothing more than a web of misleading statements."

Coleman also said it shows that Galloway was trying to mislead the Senate with his 2005 testimony and create the impression that he did not benefit from Iraqi oil deals.

"As Parliament's report states, he at best turned a blind eye, and 'on balance, was likely to have known and been complicit in what was going on,' " Coleman said. "In response, Galloway will huff and puff, but he can't blow away the facts of this report."

I'm not a Coleman fan -- I consider him an opportunistic weasel -- but I've never had any use for Galloway, either. Galloway was a lightweight, dislikable bully during the hearings, answering questions with rhetoric and bombast rather than relevancy. It was an entertaining spectacle, and one came away impressed with Galloway's forceful assertion of innocence. But one also was aware of all the questions he dodged.

Iraq, Galloway, Norm Coleman, politics, midtopia

Supply-side math

An economist weighs in with a trashing of a Wall Street Journal editorial that uses atrociously bad math in defense of supply-side economics -- in particular, an attempt to at last locate the elusive Laffer Curve. There's a more detailed discussion over at Kevin Drum's blog.

The WSJ's purpose was to show a "sweet spot" for taxation, where if you raised rates beyond that tax revenue actually went down. But there are several problems with their chart.

One is that they're using corporate taxes as their yardstick. But corporate taxes make up a much higher percentage of revenue in a tiny tax haven like Luxembourg than they do in large, diversified economy like the United States. And the main outlier, Norway, has huge corporate tax revenues because of its state oil monopoly. Those factors should have set off alarm bells for whomever was preparing the chart.

They compound the problem by drawing their line through Norway instead of either throwing out that data point (as an obvious outlier) or at least averaging it with the other data points. Then, as Drum points out, if the curve is to be believed, tax revenue crashes to zero at around 33 percent -- even though the chart itself shows companies with rates higher than that having significant tax revenue.

Third, we have no idea how or why they chose the countries in the sample -- indeed, some of the data points are unlabeled. There's no way to tell if the sample is representative, complete, or meaningful.

But mostly, the graph doesn't show any significant conclusions. For example, Australia has one of the highest revenue figures with a corporate tax rate of about 31 percent. But three unnamed countries have significantly lower revenue with the same tax rate. The only possible conclusion is that corporate tax rate is simply not the major influence at play.

As one of the commenters at the first link points out:

This (the chart) is the dumbest thing I've ever seen, and I've seen a lot. You don't have to be an economist. All you have to be is somebody who knows what a scatter diagram is.

Silly people.

The basic idea of the Laffer Curve is reasonable -- that there's a sweet spot where taxation is high enough to generate substantial revenue, but not so high that it discourages work and investment. It's simply an expression of the law of diminishing returns. The devil is in the details: where exactly is that sweet spot? Nobody has yet shown it.

It doesn't help that one of the main assumptions behind the Laffer Curve probably is false: that a 100% tax rate will generate no tax revenue because nobody will work if all their earnings are confiscated.

It's false because many people work for reasons other than money. If you love the work, you'll do it for free. Work provides a sense of accomplishment, a chance to get out of the house, a sense of worth.

Further, the Laffer argument assumes that the confiscated money is poured down a hole in the ground. In reality, it's fed back into the economy -- where it may, for instance, provide a worker at a state-owned factory with food and shelter in return for work. In other words, there are ways to incentivize people to work that don't involve money.

I'm certainly not arguing in favor of state socialism. While revenue at a 100% tax rate wouldn't be zero, it wouldn't be very high, either. Money also is the best incentive for a free society, letting people make choices and reap the benefits or drawbacks of those choices. It also seems to work the best for unlocking creativity and hard work, or persuading people to go to the trouble of pursuing specialty training or performing dangerous or unpleasant jobs. I'm just noting the practical reasons why nobody knows whether the tax sweet spot is 25 percent or 80 percent.

The WSJ folks are still idjits.

Laffer Curve, economics, politics, midtopia

Ethics reforms move slowly ahead

It's taken some watchdogging and prodding, but Democrats are still mostly doing the right thing on ethics reforms -- for now.

Sure, there's Jim DeMint (second item) holding up the conference session on the two main ethics bills -- but that's not the Democrats' fault.

And members on both sides of the aisle are balking at creating an independent ethics watchdog with teeth, for fear it could be used as a sledgehammer by political opponents.

But in general they're moving along. For example, The ill-considered plan by Rep. David Obey to keep all earmarks under wraps until the last minute has been scrapped under the weight of resounding criticism. Not only is each project listed in the bill to which it is attached -- along with its sponsor and some details -- but Obey also adopted another suggestion I made: to limit the number of earmarks. He only cut them in half, where I was suggesting cutting the number by 90 percent or more. But it's a start.

The other criticism is Republican complaints that Democrats are using procedural rules to stifle Republican efforts, violating their promises to be more evenhanded. I don't know enough about the details there to render a judgement, but take the complaints with a grain of salt. For one thing, it's an even chance that the Republicans are simply trying to make political hay out of it. For another, the specific measures they object to -- no late amendments accepted, a limit on the number of amendments that can be brought to the floor for a vote -- seem like reasonable compromises to keep the wheels of Congress turning. But if someone with more knowledge of the parliamentary workings of Congress cares to weigh in, I'm all ears.

The biggest problem facing the ethics provisions is time. It's running out, and the slowdown on ethics measures threatens to derail other important legislation that's still in the pipeline. At some point Democrats will have to prioritize their agenda -- and the ethics bills may be thrown overboard to make room for other things.

That last link, by the way, is an excellent analysis of the workings of Congress, the Democratic agenda, and the pros, cons and prospects of pursuing various pieces of it. I heartily recommend that you read the whole thing.

ethics, politics, midtopia

Good news in North Korea

Despite predictions from hawks that it would never happen, North Korea shut down its only working nuclear reactor over the weekend, in exchange for 50,000 tons of fuel oil.

Next step: Getting them to reverse earlier statements and admit they have a uranium-enrichment program, in exchange for another million tons of oil. Talks to that end begin tomorrow.

I hope John Bolton is eating a large helping of crow. Caution and skepticism is always a good idea where North Korea is involved. But Bolton proceeded from the assumption that soft diplomacy would never work -- and, thus, it never did on his watch. In this instance, at least, it appears the Bush administration has learned from its mistakes. Let's hope it continues -- and North Korea continues to meet its obligations.

nuclear, North Korea, politics, midtopia

The government wants your cash

About a year ago, I wrote about the case of a motorist who was found carrying a large sum of money. The police seized it, arguing that it just had to be drug money. They were allowed to keep it without ever bothering to prove an underlying crime, thus establishing the cherished legal principle that police can take your money anytime they like as long as the sum is large enough and the defendant is poor enough.

Now it's happened again, this time in Michigan. But there's a twist: the search that uncovered the money was illegal, which turns this into a case with broader civil-liberties implications.

No matter.

The Michigan Supreme Court on Tuesday denied the appeal of a motorist who had to forfeit nearly $181,000 that was found in a backpack during a traffic stop, even though the money was seized illegally....

Tamika Smith, who was stopped by a Michigan State Police trooper, lost the money when a judge ruled prosecutors presented enough other evidence to show it was intended to buy illicit drugs.

That evidence involved such legal activities as being poor, in possession of a large sum of money, while driving a rental car in a known drug-trafficking area.

Some details from Detroit Free Press columnist Brian Dickerson:

Five years ago, the 33-year-old Detroit woman was driving her boyfriend and her two small children to Chicago when a state trooper stopped her for speeding on I-94 outside Paw Paw. A license check revealed that the boyfriend had been arrested for cocaine possession and weapons offenses. In a subsequent (and apparently unauthorized) search of the couple's trunk, the trooper discovered a backpack containing $180,975 in cash.

Smith and her boyfriend denied the money was theirs and speculated that someone had left it in the car they had rented just a few hours earlier. But when prosecutors petitioned the state to keep the money, Smith contested the seizure, arguing that the search in which Trooper James Lass discovered the cash was illegal.

Van Buren County Circuit Judge William Buhl agreed, but eventually ruled the prosecutor's forfeiture suit could proceed, so long as the cash was never offered as evidence. When Smith, who had never earned more than $14,000 in a year, offered vague and unconvincing accounts of the money's origins, Buhl concluded that she was most likely a drug courier and ordered the money forfeited to the state.

Now I agree that Smith acted suspiciously and couldn't provide a good explanation of where the money came from. I'll even agree that she's most likely a drug courier. She also lost some standing by first denying that the money was hers.

But that's not the point. Before the government can seize private property, they should have to prove that it is tainted or ill-gotten. It's not up to the individual to prove the money is legitimately theirs; it's up to the government to prove it's not.

Question Smith about the money? Sure. Prosecute her if a crime can be established? Of course. I'd even support putting the money in the state's unclaimed funds account on the grounds that Smith denied it was hers, so she doesn't have a claim to it.

But taking property simply because, in a judge's opinion, someone is "most likely" a drug courier should offend anyone who believes in civil liberties or property rights.

You don't even have to go that far. Justice Stephen Markman, the state Supreme Court's most conservative member, wrote a stinging dissent on the narrow grounds that illegally obtained evidence cannot be used as evidence to support the seizure of said evidence. Here's the full opinion in the case (pdf); Markman's dissent begins on Page 30. In it he notes the bizarre logic used in the main opinion, which asserts that "while the cash itself was excluded from evidence, the trial court could properly consider the implications of the presence of such a large amount of cash in the vehicle." In other words, though the cash itself was excluded from evidence, the cash itself could be included as evidence.

The upshot:

Oak Park attorney Karri Mitchell, who represented Smith in her unsuccessful appeal, said the high court's ruling leaves every Michigan resident's property rights in jeopardy.

"This means that John Q. Public can be stopped for a traffic violation and, if the policeman thinks he can't afford the watch he's wearing, it becomes the property of the state unless he can prove he came by it legitimately," Mitchell said.

But Van Buren County Assistant Prosecutor Michael Bedford, who at one point offered Smith about $30,000 to drop her claim to the $180,000, called Mitchell's scenario far-fetched.

"Theoretically, a person could be forced to prove they came by an [illegally seized] asset legally," Bedford conceded.

"But hopefully, we don't have anybody out there abusing the forfeiture statute and putting people in a position where they have to do that."

Oh, I feel safer already, knowing that the state's best defense is that "hopefully, nobody will abuse the statute."

civil liberties, politics, midtopia